[Federal Register Volume 79, Number 145 (Tuesday, July 29, 2014)]
[Rules and Regulations]
[Pages 43919-43923]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-17802]
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Rules and Regulations
Federal Register
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Federal Register / Vol. 79, No. 145 / Tuesday, July 29, 2014 / Rules
and Regulations
[[Page 43919]]
OFFICE OF PERSONNEL MANAGEMENT
5 CFR Parts 300, 315, 335, 410, 537, and 900
RIN 3206-AM77
Nondiscrimination Provisions
AGENCY: U.S. Office of Personnel Management.
ACTION: Final rule.
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SUMMARY: The Office of Personnel Management (OPM) is issuing a final
rule to update various nondiscrimination provisions to provide greater
consistency and reflect current law.
DATES: This final rule is effective July 29, 2014.
FOR FURTHER INFORMATION CONTACT: Sharon Wong by telephone at (202) 606-
7140; by TTY at 1-800-877-8339; by fax at (202) 606-6042; or by email
at diversityandinclusion@opm.gov.
SUPPLEMENTARY INFORMATION: On September 4, 2013, OPM issued proposed
regulations in the Federal Register (78 FR 54434) to update certain
regulations that contain nondiscrimination provisions. OPM conducted a
retrospective review of its regulations, including those with
nondiscrimination provisions, as part of the Executive Order 13563
directive that agencies review existing regulations to determine
whether they should be changed or eliminated. See http://www.opm.gov/Open/Resources/RetrospectiveRegReview.pdf.
OPM also chose these regulations for retrospective review to
further respond to a separate instruction issued by President Obama in
a June 17, 2009, Memorandum on Federal Benefits and Nondiscrimination,
which directed OPM to issue guidance to promote compliance with
existing laws that required Federal workplaces to be free of
discrimination based on non-merit factors. See 5 U.S.C. 2303(b)(10);
http://www.whitehouse.gov/the-press-office/memorandum-heads-executive-departments-and-agencies-federal-benefits-and-non-discri.
Our review revealed that the nondiscrimination provisions in
certain regulations were inconsistently worded or had not been updated
to reflect recent legal developments, including enactment of the
Genetic Information Nondiscrimination Act of 2008 (GINA), Pub. L. 110-
233, which prohibits discrimination on the basis of genetic information
(including family medical history). Accordingly, OPM is issuing these
final regulations to update the nondiscrimination provisions of certain
regulations to reflect current law and to make them consistent, to the
greatest extent possible.
Some of the nondiscrimination provisions reflect statutory
prohibitions on discrimination that arise out of the civil service laws
codified at title 5, United States Code, and OPM's authority to enforce
the merit system principles. Others were promulgated to reflect the
provisions of Title VII of the Civil Rights Act of 1964, as amended (42
U.S.C. 2000e, et seq.), the Rehabilitation Act of 1973, as amended (29
U.S.C. 701 et seq.), and the Age Discrimination in Employment Act of
1967, as amended (ADEA) (29 U.S.C. 621-634). As a result, we adopted
two formulations of the nondiscrimination language. For those grounded
in Title VII of the Civil Rights Act, the Rehabilitation Act, the ADEA,
and the GINA (referred to collectively here as ``civil rights laws''),
the provisions will reflect the statutory prohibitions of
discrimination on the basis of race, color, religion, sex (including
pregnancy and gender identity), national origin, age (as defined by the
Age Discrimination in Employment Act of 1967, as amended), disability,
genetic information (including family medical history) and retaliation
for exercising rights under the statutes enumerated above, where
retaliation rights are available. For those grounded in the civil
service laws, the provisions reflect the statutory prohibitions of
discrimination on those bases (5 U.S.C. 2302(b)(1)(A)-(D)), as well as
prohibitions of discrimination on the basis of marital status (5 U.S.C.
2302(b)(1)(E)); political affiliation (id.); and sexual orientation,
labor organization affiliation or non-affiliation, status as a parent,
or any other non-merit-based factor (E.O. 13087; E.O. 13152; 5 U.S.C.
2302(b)(10)). It also incorporates retaliation for exercising rights
under the statutes enumerated above, where retaliation rights are
available. (5 U.S.C. 2302(b)(9)(A)-(B)).
We further concluded that the nondiscrimination provisions
currently appearing in some regulations were grounded in other specific
legal authorities and appropriately reflected the scope of the laws
that they are implementing. Therefore, we did not propose changes to
those provisions. See 5 CFR part 720 and 5 CFR part 724.
We believe that greater consistency across our nondiscrimination
provisions will clarify the protections afforded to individuals and
lessen the confusion that might result from the use of different
language in various provisions. Also, where appropriate, we updated the
authority citations for the regulations to reflect a complete list of
the statutory provisions pursuant to which the regulations are now
being reissued.
As part of the update process, in reviewing the proposed text for
section 300.103(c), we also noticed that the heading, ``Equal
employment opportunity,'' was not completely descriptive of the
subparagraph because it encompassed forms of discrimination not
currently encompassed by the equal employment opportunity laws.
Accordingly, we have changed this heading to read ``Equal employment
opportunity and prohibited forms of discrimination.''
OPM received six sets of comments in response to the proposed
changes to the regulation in 5 CFR parts 300, 315 and 335. Comments on
the proposed changes were received from an anonymous commenter, a
private citizen (law student), one Federal agency, a disability
advocacy group, a religious organization, and a coalition of advocacy
groups.
The anonymous commenter requested to have ``gender, particularly
trans-gender'' listed as a protected category and age discrimination
claims expanded to include all ages. With regard to gender, as noted
above, the category ``gender identity'' is already included within the
category of ``sex (including pregnancy and gender identity).''
[[Page 43920]]
Accordingly, OPM does not believe any further action on this comment is
necessary or appropriate. Similarly, with regard to the commenter's
position on the scope of age discrimination claims, OPM lacks the
authority to revise the statutory elements for the ADEA through this
rulemaking process, and thus declines to adopt that comment.
The individual commenter focused on issues related to the addition
of ``sexual orientation'' as a protected category in certain
provisions. The commenter stated that he believed the regulations will
result in greater inconsistency because the references to sexual
orientation were limited to the administrative arena and do not include
the right to file a civil action in a Federal court. He also asserted
that the absence of a right to Federal court meant the regulations were
not ``current.''
In support of his position, the commenter cited a 2002 district
court ruling, which held that sexual orientation claims are not
actionable under Title VII. OPM has considered this comment but does
not agree that the revised regulations will result in ``greater
inconsistency'' or that the changes have not made the regulations
``current.'' These regulations seek to reflect the existing state of
the law. Specifically, under the Civil Service Reform Act (CSRA), OPM
has broad authority to issue regulations, including defining what is
meant by ``non-merit-based factors.'' Under this authority, OPM has
long held that, when tied to an actionable Part 300 claim, a claim of
sexual orientation discrimination could reach the Merit System
Protection Board and possibly, the Federal Circuit. Therefore, the
regulations correctly note that claims of sexual orientation
discrimination may be brought under the CSRA. On the other hand, these
regulations seek to reflect, and do not purport to alter, the existing
state of the law in Federal courts. Consequently, the regulations do
not, and did not intend to, opine on what kinds of claims may be viable
sex discrimination claims in Federal courts under Title VII.
The commenter suggested in the alternative that OPM add language
explaining what he described as ``the discrepancy between a [F]ederal
employee's right to administratively pursue a sexual orientation
discrimination claim and the narrow judicial review sections of the
CSRA,'' either in the regulation or in the OPM handbook titled
``Addressing Sexual Orientation Discrimination.'' See Comment at page
5. OPM has considered this comment but declined to adopt either
alternative. These regulations are not a strategic guide for
litigation; rather, they only restate the law as it exists today.
Accordingly, OPM declines to add specific information regarding
litigation options for sexual orientation claims. With respect to OPM's
handbook, OPM notes this document has been rendered out of date as a
result of significant developments that have occurred since its
original publication in 2008, including most significantly the Supreme
Court's decision invalidating Section 3 of the Defense of Marriage Act
(DOMA). As a result, this handbook has been taken down from OPM's Web
site for an assessment of whether the document can merely be updated or
whether a new publication is appropriate.
The commenter also requested that OPM either define the term
``sexual orientation'' or add a parenthetical to make the meaning
clearer, similar to parentheticals added to other bases under Title
VII. The commenter believed such definitions were needed in order for
the provisions to truly reflect what he defines as ``current law.'' The
religious organization also raised a concern that ``sexual
orientation'' was not defined. OPM considered these comments but
declines to adopt them. The parentheticals for the Title VII categories
were included only for clarification and for consistency across the
regulations with nondiscrimination provisions. Although both commenters
suggest that the ``meaning'' of sexual orientation is not unified, the
existing case law demonstrates that the term ``sexual orientation'' is
generally understood in the context of nondiscrimination jurisprudence,
and thus not in need of further definition or clarification in these
regulations.
The individual commenter, the agency, and the disability advocacy
organization questioned why certain bases were missing from the list of
protected bases in certain provisions within Part 300, Employment
Practices. In particular, each commenter noted the difference between 5
CFR 300.104 (Appeals, Grievances and Complaints; complaints and
grievance to an agency) as compared to 5 CFR 300.103 (Basic
requirements; equal employment opportunity). The commenter recognized
these two provisions were grounded in different authorities but
suggested that sexual orientation should be added to section
300.104(c)(1) \1\ to allow for a complaint alleging sexual orientation
discrimination within an agency. OPM has considered but declines to
accept this suggestion. Section 300.103(c), one of the three
foundations for raising an employment practice claim, identifies the
statutory categories of discrimination under the civil rights laws and
prohibited personnel practices under the merit system principles for
which one can seek redress. Section 300.104(c), however, is an internal
agency administrative complaints process that was created by regulation
in order to give another, although more limited, avenue for redress to
employees. Given the more limited authority for an action under section
300.104(c), OPM initially decided that it was more appropriate to
simply update the language within the provision, including changing an
obsolete procedural citation, but not add any additional bases for a
claim. Upon further review, however, OPM believes it is appropriate to
further update the language in this provision to include the same
formulation for Title VII claims found in 300.103(c) for consistency.
Therefore, the parenthetical (including pregnancy and gender identity)
has been added to the category ``sex,'' and ``disability,'' ``genetic
information (including family medical history),'' and ``retaliation''
have been added as separate categories.
---------------------------------------------------------------------------
\1\ The commenter actually cited ``section 300.103(c)(1),'' but
OPM believes this is a typographic error because this same sentence
referenced the right to file a complaint, which is consistent with
language in ``section 300.104(c)(1).'' Moreover, the term ``sexual
orientation'' is already included in section 300.103(c).
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The agency specifically questioned why ``disability,'' ``genetic
information,'' and ``retaliation'' were not included in the list of
protected bases in section 300.104(c)(1) as well as why ``genetic
information'' and ``retaliation'' were not included in section
315.806(d) (Appeal rights to the Merit System Protection Board [MSPB]).
As noted above, upon further review, OPM has decided to further update
section 300.104(c)(1) to reflect the same formulation for claims under
the civil rights laws already found in section 300.103(c). So
``disability,'' ``genetic information (including family medical
history),'' and ``retaliation'' have now been added as separate
categories.
Further, while considering the agency comments, OPM identified an
error in the final sentence of section 300.104(c)(1). Specifically, the
sentence refers to ``EEO and grievance procedures.'' The grievance
procedures, however, are already referenced in section 300.104(c)(2).
Therefore, OPM removed the duplicative reference to ``grievance'' from
the last sentence in section 300.104(c)(1).
In section 315.806(d) of Part 315, OPM addresses probationary
employees. Longstanding Civil Service Commission and OPM regulations,
now at 5 CFR
[[Page 43921]]
315.806(d), limit probationers' access to the MSPB to appeals based on
discrimination claims based on marital status or partisan political
reasons. The regulations permitted appellants to append allegations of
other types of discrimination that were then enshrined in statute when
an employee raised a marital status or partisan political reason
allegation.
Consistent with the purpose of these regulations--to ``update
various nondiscrimination provisions'' in Title 5 of the Code of
Federal Regulations--OPM proposed to retain the current content of the
regulation, but change ``handicapping condition'' to ``disability.'' In
keeping with our objective of conforming the regulation to accurately
reflect the current state of the law, we also added the parenthetical
``(including pregnancy and gender identity)'' to the word ``sex.'' The
separate grounds of ``genetic information (including family medical
history)'' and ``retaliation'' have not been added, however, because
those categories would create new rights, which is outside the scope of
this rulemaking process.
The disability advocacy organization supported OPM's proposal to
add disability and genetic information to the non-discrimination
provisions in sections 300.102, 300.103, and 335.103. Similar to the
agency, however, the organization also thought ``disability'' and
``genetic information'' should be added to the list of claims
actionable under the agency administrative process in section
300.104(c). For the reasons discussed above, OPM agrees with this view
and has added ``disability'' and ``genetic information (including
family medical history).''
The disability advocacy organization also asked that OPM ``clarify
in the final regulations that the Uniform Guidelines on Employee
Selection Procedures (UGESP) does not apply to complaints of
discrimination based on disability'' in light of statements from the
EEOC related to UGESP. OPM considered this comment and agrees that
clarification is needed. On its face, UGESP states that it applies to
employment selection procedures with an adverse impact on members of a
race, color, religion, sex, or national origin group. Therefore,
section 300.103(c) is further revised to make it clear that while the
categories of claims in this regulation have been updated to reflect
current law, to the extent possible, OPM did not intend to expand the
scope of the UGESP.
The disability advocacy group's final comment asked OPM to revise 5
CFR 300.103(b) (Relevance), a different provision of the employment
practice claims regulations. This provision was not part of this update
process; therefore, this comment is outside of the scope of this
rulemaking and will not receive any further consideration, beyond
acknowledging receipt.
The religious organization questioned the inclusion of ``gender
identity'' and ``sexual orientation'' to categories to prevent Federal
workplace discrimination. First, the organization stated the inclusion
of ``gender identity'' was not authorized by statute and the term is
ambiguous and not defined in the regulations. OPM has considered these
comments but disagrees that the category of ``gender identity'' is not
authorized or that the term is not sufficiently defined. OPM notes that
since 2012, the Equal Employment Opportunity Commission (EEOC) has
recognized, in case law, that a gender identity claim is a form of
discrimination on the basis of sex under Title VII. See Macy v. Holder,
No. 0120120821, 2012 WL 1435995 *2 (EEOC, Apr. 20, 2012). Operative law
is defined not only by the literal terms of statute and regulation but
also by case law developed by the agency upon which authority to
resolve claims is conferred and any Federal courts with jurisdiction to
consider such claims. Although the organization cited several cases
that, in its view, supported its position regarding the viability of
gender identity claims under Title VII, the position outlined by the
EEOC in its 2012 Macy decision is the operative precedent with respect
to how such claims will be handled through the Federal sector EEO
process, which was our focus in drafting this language. In addition, as
a substantive matter, two recent Federal court decisions, including one
involving the Federal sector, have recognized the viability of such
claims, see Schroer v. Billington, 577 F. Supp. 2d 293 (D.D.C. 2008);
Finkle v. Howard Co., ----F. Supp. 2d ----, 2014 WL 1396386, at *8 (D.
Md. Apr. 10, 2014). Moreover, several Federal courts have allowed
gender identity discrimination claims to proceed as allegations of sex
stereotyping under Title VII or section 1983, see, e.g., Glenn v.
Brumby, 663 F.3d 1312, 1316 (11th Cir. 2011); Barnes v. City of
Cincinnati, 401 F.3d 729 (6th Cir. 2005). The existing case law
demonstrates that the term ``gender identity'' is generally understood
in the context of nondiscrimination jurisprudence, and thus not in need
of further definition or clarification in these regulations.
The organization also stated that if the ``gender identity'' claim
remained in the regulations, then there was no need for a bill such as
``Employment Non-Discrimination Act'' (ENDA) and that such inclusion
``would have an adverse impact on the rights of other employees.'' See
Comment at page 4. It made a similar comment about the negative impact
of the ``sexual orientation'' category on the rights of other
employees. OPM has considered but disagrees with these comments.
Pending legislative actions, such as ENDA, are outside of the scope of
this rulemaking, but OPM notes that the possibility of future
legislation is not a basis for declining to act. See Pension Ben. Guar.
Corp. v. LTV Corp, 496 U.S. 633, 650 (1990) (``Subsequent legislative
history is a hazardous basis for inferring the intent of an earlier
Congress. It is a particularly dangerous ground on which to rest an
interpretation of a prior statute when it concerns, as it does here, a
proposal that does not become law.'') (internal quotations and
citations omitted). Moreover, even if passed, ENDA would not be limited
to the Federal workforce, so would not be redundant to these
regulations.
With regard to the rights of other employees, OPM notes it is
already unlawful to discriminate against Federal employees or
applicants for Federal employment on the basis of factors not related
to job performance. 5 U.S.C. 2302(b)(10). The inclusion in these
regulations of ``gender identity'' and ``sexual orientation'' did not
change that longstanding prohibition. On the other hand, the suggestion
that OPM simply incorporate the existing statutory language for 5
U.S.C. 2302(b)(10) is inconsistent with the purpose of this rulemaking
process, which is to reduce the likelihood of confusion and
inconsistent application. So OPM declines to adopt that suggestion.
Lastly the organization asserts that inclusion of ``gender
identity'' and ``sexual orientation'' as part of a list of protected
classes, along with other classes such as race, unfairly equates
religious or moral opposition to claims of gender identity or sexual
orientation with racial bigotry. OPM does not make such a moral
equivalence assertion and does not believe the regulations, as written,
inherently lead to such comparisons. Therefore, OPM does not believe
this concern is a basis for removing the category of ``gender
identity'' or ``sexual orientation'' from the nondiscrimination
regulations.
The coalition of advocacy groups agreed with the changes in the
regulations that added the parenthetical to ``sex'' so that it now
reads ``sex (including pregnancy and gender identity)'' under the
formulation for categories under Title VII. The coalition also asked
that OPM further revise the
[[Page 43922]]
Title VII categories to include sexual orientation. As OPM noted
previously, the purpose of this rulemaking is to note that claims of
discrimination based upon factors not related to job performance, such
as sexual orientation, may be brought under CSRA, the regulations do
not, and did not intend at this time, to specifically address Title
VII.
The coalition also requested that OPM take additional actions to
work with other agencies to update their EEO policies and update
existing guidance related to transgender employees. These requests are
outside of the scope of this rulemaking process but OPM notes that it
plans to assess all of the OPM published materials in this area to
determine whether new or updated publications are appropriate.
Executive Order 13563 and Executive Order 12866
The Office of Management and Budget has reviewed this rule in
accordance with E.O. 13563 and 12866.
Regulatory Flexibility Act
I certify that these regulations would not have a significant
economic impact on a substantial number of small entities because they
would apply only to Federal agencies and employees.
List of Subjects in 5 CFR Parts 300, 315, 335, 410, 537, and 900
Administrative practice and procedure, Equal employment
opportunity, Government employees, Individuals with disabilities,
Intergovernmental relations.
U.S. Office of Personnel Management.
Katherine Archuleta,
Director.
Accordingly, OPM amends title 5, Code of Federal Regulations, as
follows:
PART 300--EMPLOYMENT (GENERAL)
0
1. Revise the authority citation for 5 CFR part 300 to read as follows:
Authority: 5 U.S.C. 552, 2301, 2302, 3301, and 3302; E.O.
10577, 3 CFR 1954-1958 Comp., page 218, unless otherwise noted.
Secs. 300.101 through 300.104 also issued under 5 U.S.C. 7201, 7204,
and 7701; E.O. 11478, 3 CFR 1966-1970 Comp., page 803, E.O. 13087;
and E.O. 13152. Secs. 300.401 through 300.408 also issued under 5
U.S.C. 1302(c). Secs. 300.501 through 300.507 also issued under 5
U.S.C. 1103(a)(5). Sec. 300.603 also issued under 5 U.S.C. 1104.
0
2. Revise Sec. 300.102(c) to read as follows:
Sec. 300.102 Policy.
* * * * *
(c) Be developed and used without discrimination on the basis of
race, color, religion, sex (including pregnancy and gender identity),
national origin, age (as defined by the Age Discrimination in
Employment Act of 1967, as amended), disability, genetic information
(including family medical history), marital status, political
affiliation, sexual orientation, labor organization affiliation or
nonaffiliation, status as a parent, or any other non-merit-based
factor, or retaliation for exercising rights with respect to the
categories enumerated above, where retaliation rights are available.
* * * * *
0
3. Revise Sec. 300.103(c) to read as follows:
Sec. 300.103 Basic requirements.
* * * * *
(c) Equal employment opportunity and prohibited forms of
discrimination. An employment practice must not discriminate on the
basis of race, color, religion, sex (including pregnancy and gender
identity), national origin, age (as defined by the Age Discrimination
in Employment Act of 1967, as amended), disability, genetic information
(including family medical history), marital status, political
affiliation, sexual orientation, labor organization affiliation or
nonaffiliation, status as a parent, or any other non-merit-based
factor, or retaliation for exercising rights with respect to the
categories enumerated above, where retaliation rights are available.
Employee selection procedures shall meet the standards established by
the ``Uniform Guidelines on Employee Selection Procedures,'' where
applicable.
0
4. Revise Sec. 300.104(c)(1) to read as follows:
Sec. 300.104 Appeals, grievances and complaints.
* * * * *
(c) Complaints and grievances to an agency. (1) A candidate may
file a complaint with an agency when he or she believes that an
employment practice that was applied to him or her and that is
administered by the agency discriminates against him or her on the
basis of race, color, religion, sex (including pregnancy and gender
identity), national origin, age (as defined by the Age Discrimination
in Employment Act of 1967, as amended), disability, genetic information
(including family medical history), or retaliation for exercising
rights with respect to the categories enumerated above, where
retaliation rights are available. The complaint must be filed and
processed in accordance with the agency EEO procedures, as appropriate.
* * * * *
PART 315--CAREER AND CAREER-CONDITIONAL EMPLOYMENT
0
5. Revise the authority citation for part 315 to read as follows:
Authority: 5 U.S.C. 1302, 2301, 2302, 3301, and 3302; E.O.
10577, 3 CFR, 1954-1958 Comp. p. 218, unless otherwise noted; and
E.O. 13162. Secs. 315.601 and 315.609 also issued under 22 U.S.C.
3651 and 3652. Secs. 315.602 and 315.604 also issued under 5 U.S.C.
1104. Sec. 315.603 also issued under 5 U.S.C. 8151. Sec. 315.605
also issued under E.O. 12034, 3 CFR, 1978 Comp. p.111. Sec. 315.606
also issued under E.O. 11219, 3 CFR, 1964-1965 Comp. p. 303. Sec.
315.607 also issued under 22 U.S.C. 2506. Sec. 315.608 also issued
under E.O. 12721, 3 CFR, 1990 Comp. p. 293. Sec. 315.610 also issued
under 5 U.S.C. 3304(c). Sec. 315.611 also issued under 5 U.S.C.
3304(f). Sec. 315.612 also issued under E.O. 13473. Sec. 315.708
also issued under E.O.13318, 3 CFR, 2004 Comp. p. 265. Sec. 315.710
also issued under E.O. 12596, 3 CFR, 1987 Comp. p. 229. Subpart I
also issued under 5 U.S. C. 3321, E.O. 12107, 3 CFR, 1978 Comp. p.
264.
0
6. Revise Sec. 315.806(d) to read as follows:
Sec. 315.806 Appeal rights to the Merit Systems Protection Board.
* * * * *
(d) An employee may appeal to the Board under this section a
termination that the employee alleges was based on discrimination
because of race, color, religion, sex (including pregnancy and gender
identity), national origin, age (as defined by the Age Discrimination
in Employment Act of 1967, as amended), or disability. An appeal
alleging a discriminatory termination may be filed under this
subsection only if such discrimination is raised in addition to one of
the issues stated in paragraph (b) or (c) of this section.
PART 335--PROMOTION AND INTERNAL PLACEMENT
0
7. Revise the authority citation for 5 CFR part 335 to read as follows:
Authority: 5 U.S.C. 2301, 2302, 3301, 3302, 3330; E.O. 10577,
E.O. 11478, 3 CFR 1966-1970 Comp., page 803, unless otherwise noted,
E.O. 13087; and E.O. 13152, 3 CFR 1954-58 Comp., p. 218; 5 U.S.C.
3304(f), and Pub. L. 106-117.
0
8. Revise Sec. 335.103(b)(1) to read as follows:
Sec. 335.103 Agency promotion programs.
* * * * *
(b) Merit promotion requirements--(1) Requirement 1. Each agency
must establish procedures for promoting employees that are based on
merit and are available in writing to candidates. Agencies must list
appropriate exceptions, including those required by
[[Page 43923]]
law or regulation, as specified in paragraph (c) of this section.
Actions under a promotion plan--whether identification, qualification,
evaluation, or selection of candidates--must be made without regard to
race, color, religion, sex (including pregnancy and gender identity),
national origin, age (as defined by the Age Discrimination in
Employment Act of 1967, as amended), disability, genetic information
(including family medical history), marital status, political
affiliation, sexual orientation, labor organization affiliation or
nonaffiliation, status as a parent, or any other non-merit-based
factor, unless specifically designated by statute as a factor that must
be taken into consideration when awarding such benefits, or retaliation
for exercising rights with respect to the categories enumerated above,
where retaliation rights are available, and must be based solely on
job-related criteria.
* * * * *
PART 410--TRAINING
0
9. Revise the authority citation for 5 CFR part 410 to read as follows:
Authority: 5 U.S.C. 1103(c), 2301, 2302, 4101, et seq.; E.O.
11348, 3 CFR, 1967 Comp., p. 275, E.O. 11478, 3 CFR 1966-1970 Comp.,
page 803, unless otherwise noted, E.O. 13087; and E.O. 13152.
0
10. Revise Sec. 410.302(a)(1) to read as follows:
Sec. 410.302 Responsibility of the head of an agency.
(a) Specific responsibilities. (1) The head of each agency must
prescribe procedures as are necessary to ensure that the selection of
employees for training is made without regard to race, color, religion,
sex (including pregnancy and gender identity), national origin, age (as
defined by the Age Discrimination in Employment Act of 1967, as
amended), disability, genetic information (including family medical
history), marital status, political affiliation, sexual orientation,
labor organization affiliation or nonaffiliation, status as parent, or
any other non-merit-based factor, unless specifically designated by
statute as a factor that must be taken into consideration when awarding
such benefits, or retaliation for exercising rights with respect to the
categories enumerated above, where retaliation rights are available,
and with proper regard for their privacy and constitutional rights as
provided by merit system principles set forth in 5 U.S.C. 2301(b)(2).
* * * * *
PART 537--REPAYMENT OF STUDENT LOANS
0
11. Revise the authority citation for 5 CFR part 537 to read as
follows:
Authority: 5 U.S.C. 2301, 2302, and 5379(g); E.O. 11478, 3 CFR
1966-1970 Comp., page 803, unless otherwise noted, E.O. 13087; and
E.O. 13152.
0
12. Revise Sec. 537.105(d) to read as follows:
Sec. 537.105 Criteria for payment.
* * * * *
(d) Selection. When selecting employees (or job candidates) to
receive student loan repayment benefits, agencies must ensure that
benefits are awarded without regard to race, color, religion, sex
(including pregnancy and gender identity), national origin, age (as
defined by the Age Discrimination in Employment Act of 1967, as
amended), disability, genetic information (including family medical
history), marital status, political affiliation, sexual orientation,
labor affiliation or nonaffiliation, status as a parent, or any other
non-merit-based factor, unless specifically designated by statute as a
factor that must be taken into consideration when awarding such
benefits, or retaliation for exercising rights with respect to the
categories enumerated above, where retaliation rights are available.
PART 900--INTERGOVERNMENTAL PERSONNEL ACT PROGRAMS
Subpart F--Standards for a Merit System of Personnel Administration
0
13. Revise the authority citation for 5 CFR part 900, subpart F, to
read as follows:
Authority: 42 U.S.C. 4728, 4763; E.O. 11589, 3 CFR part 557
(1971-75 Compilation); 5 U.S.C. 2301, 2302, E.O. 11478, 3 CFR 1966-
1970 Comp., page 803, unless otherwise noted, E.O. 13087; and E.O.
13152.
0
14. Revise Sec. 900.603(e) to read as follows:
Sec. 900.603 Standards for a merit system of personnel
administration.
* * * * *
(e) Assuring fair treatment of applicants and employees in all
aspects of personnel administration without regard to race, color,
religion, sex (including pregnancy and gender identity), national
origin, age (as defined by the Age Discrimination in Employment Act of
1967, as amended), disability, genetic information (including family
medical history), marital status, political affiliation, sexual
orientation, status as parent, labor organization affiliation or
nonaffiliation in accordance with chapter 71 of title V, or any other
non-merit-based factor, or retaliation for exercising rights with
respect to the categories enumerated above, where retaliation rights
are available, and with proper regard for their privacy and
constitutional rights as citizens. This ``fair treatment'' principle
includes compliance with the Federal equal employment opportunity and
nondiscrimination laws.
* * * * *
[FR Doc. 2014-17802 Filed 7-25-14; 8:45 am]
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